Supreme Court of India
RAMESH KUMAR SONIversusSTATE OF MADHYA PRADESH
- Citation
- 2013 INSC 126
- Decided
- 26 February 2013
- Disposal
- Dismissed
- Bench
- T S THAKUR
Holding
The amendment is procedural and operates retrospectively; the case, not having been instituted before the amendment, must be tried by the Court of Sessions, and the High Court's decision is overruled prospectively.
Summary
The appellant was charged with offences under Sections 408, 420, 467, 468 and 471 of the IPC, registered in May 2007. The Madhya Pradesh Amendment to the Code of Criminal Procedure, 1973, which came into force on 22 February 2008, shifted the jurisdiction for offences under Sections 467, 468 and 471 from a Judicial Magistrate of First Class to a Court of Sessions. The appellant argued that, because no charge‑sheet had been filed before the amendment, he retained the right to be tried before a Magistrate. The Supreme Court held that the amendment is procedural and therefore operates retrospectively; since no case was pending before the Magistrate at the time the amendment became effective, the case was deemed instituted only after the amendment and must be tried by the Sessions Court. The Court overruled the Madhya Pradesh High Court Full Bench decision, but applied the overruling prospectively to avoid hardship to cases already sent back to Magistrates. Consequently, the appeal was dismissed.
Issues considered
- The amendment to the First Schedule of the Cr.P.C. is prospective or retrospective.
- Whether pending cases before a Judicial Magistrate as of the amendment date remain triable by that Magistrate.
- Whether the appellant has a vested right to a particular forum of trial.
Legislation cited
- Code of Criminal Procedure (Madhya Pradesh Amendment) Act, 2007s. First Schedule (amended)
- General Clauses Acts. Section 6
Subjects
procedural lawretrospective effectforum of trialCriminal Procedure Code amendmentvested rightprospective overrulingjurisdictionMadhya Pradesh
Judgment
[2013] 1 S.C.R. 1129
RAMESH KUMAR SONI A
v.
STATE OF MADHYA PRADESH
(Criminal Appeal No. 353 of 2013)
FEBRUARY 26, 2013
B
[T.S. THAKUR AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Code of Criminal Procedure (Madhya Pradesh
Amendment) Act 2007: C
First Schedule to Code of Criminal Procedure, 1973 -
Amendment - Offences punishable u/ss 467, 468 and 471
made triable by Court of Session in State of Madhya Pradesh
- Offence committed prior to amendment but charge-sheet D
filed after the amendment came into force - Held: Magistrate
on receipt of a charge-sheet which was tantamount to
institution of a case against the appellant was duty bound to
commit the case to the Court of Session as three of the
offences with which he was charged were triable only by Court E
of Session - Apart from the fact that as on the date the
amendment came into force no case had been instituted
against the appellant nor the Magistrate had taken
cognizance against the appellant, any amendment shifting
the forum of the trial had to be on principle retrospective in F
nature in the absence of any indication in the Amendment Act
to the contrary - Appellant could not claim a vested right of
forum for his trial for, no such right is recognised - Judgment
of Full Bench of Madhya Pradesh High Court overruled -
Prospective overruling of judgment - Retrospective operation
of amendment shifting the forum - Code of Crimin.a.I G
Procedure, 1973 - First Schedule as amended in State of
Madhya Pradesh.
By the Code of Criminal Procedure (Madhya Pradesh
1129 H
1130 SUPREME COURT REPORTS [2013] 1 S.C.R.
A Amendment) Act of 2007, the first Schedule to the Code
of Criminal Procedure, 1973 was amended w.e.f.
22.2.2008 and, among others, offences punishable u/ss
467, 468 and 471 IPC were made triable by the Court of
Session in State of Madhya Pradesh instead of a Court
B of Magistrate of First Class. Consequently, the Judicial
Magistrates, First Class committed to the Court of
Session all cases involving the relevant offences. On
reference made by a Sessions Judge, a full Bench of the
High Court1 held that all cases pending before the Court
c of Judicial Magistrate First Class as on 22.2.2008
remained unaffected by the amendment and were triable
by the Judicial Magistrate First Class. The Court further
held that all such cases as were pending before the
Judicial Magistrate First Class and had been committed
to the Court of Session would be sent back to the
0
Judicial Magistrate First Class in accordance with law.
Relying upon the said decision the appellant, against
whom a case for offences punishable u/ss 408, 420, 467,
468 and 471 IPC was registered, filed an application
before the trial court seeking a similar direction for
E remission of the case for trial by a Judicial Magistrate.
The case of the appellant was that though the police had
not filed a charge-sheet against the appellant and the
investigation in the case was pending as on the date the
amendment came into force, the appellant had acquired
F the right of trial by a forum specified in Schedule I of the
1973 Code and any amendment shifting the forum of trial
to the Court of Session was not attracted. The trial court
held that since no charge-sheet had been filed before the
Magistrate as on the date the amendment came into force,
G the case was exclusively triable by the Court of Session.
The High Court dismissed the revision petition filed by
the appellant.
1. Re. Amendment of First Schedule of Criminal Procedure Code by Criminal
H Procedure Code (M.P. Amendment) Act, 2007 : 2008 (3) MPLJ 311.
RAMESH KUMAR SONI v. STATE OF MADHYA 1131
PRADESH
In the instant appeal filed by the accused the A
question for consideration before the Court was:
"whether the amendment is prospective and will be
applicable only to offences committed after the date the
amendment was notified or would govern cases that were
pending on the date of the amendment or may have been B
filed after the same had become operative".
Dismissing the appeal, the Court
HELD: 1.1 The Code of Criminal Procedure does not
provide any definition of institution of a case. It is, C
however, trite that a case must be deemed to be instituted
only when the court competent to take cognizance of the
offence alleged therein does so. The cognizance can, in
turn, be taken by a Magistrate on a _complaint of facts filed
before him which constitutes such an offence. It may also D
be taken if a police report is filed before the Magistrate in
, writing of such facts as would constitute an offence. The
Magistrate may also take cognizance of an offence on the
basis of his knowledge or suspicion upon receipt of the
information from any person other than a police officer. E
In the case of the Court of Session, such cognizance is
taken on co-mmitment to it by a Magistrate duly
empowered in that behalf. All this implies that the case
is instituted in the Magistrate's Court when the Magistrate
takes cognizance of an offence, in which event the case
F
is one instituted on a complaint or a police report. [para
7] (1139-A-D]
Jamuna Singh and Ors. v. Bahdai Shah 1964 SCR 37 =
AIR 1964 SC 1541 ; Devrapally Lakshminarayana Reddy and
Ors. v. Narayana Reddy and Ors. 1976 Suppl. SCR 524 = G
(1976) 3 SCC 252; Kamlapati Trivedi v. State of West Bengal
=
1979 (2) SCR 717 (1980) 2 sec 91 - referred to
1.2 No case was pending before the Magistrate
against the appellant as on the date the Amendment Act H
1132 SUPREME COURT REPORTS [2013]"1 S.C.R.
A came into force. That being so, the Magistrate on receipt
of a charge-sheet which was tantamount to institution of
a case against the appellant was duty bound to commit
the case to the Court of Session as three of the offences
with which he was charged were triable only by the Court
8 of Session. The Sessions Judge as also the High Court
were, in that view, perfectly justified in holding that the
order of committal passed by the Magistrate was a legally
valid order and the appellant could be tried only by the
Court of Session to which the case stood committed.
C [para 8] [1139-G-H; 1140-A-C]
1.3 The amendment to the Criminal Procedure Code
in the instant case has the effect of shifting the forum of
trial of the accused from the Court of Magistrate First
Class to the Court of Session. Apart from the fact that as
D on the date the amendment came into force no case had
been instituted against the appellant nor the Magistrate
had taken cognizance against the appellant, any
amendment shifting the forum of the trial had to be on
principle retrospective in nature in the absence of any
E indication in the Amendment Act to the contrary. The
appellant could not claim a vested right of forum for his
trial, for no such right is recognised. [para 13] [1144-E-G]
New India Insurance Company Ltd. v. Smt. Shanti Misra,
Adult 1976 (2) SCR 266 = (1975) 2 SCC 840; Hitendra
F Vishnu Thakur and Ors. etc. etc. v. State of Maharashtra and
=
Ors. 1994 (1) Suppl. SCR 360 (1994) 4 SCC 602; Sudhir
G. Angur and Ors. v. M. Sanjeev and Ors. 2005 (4) Suppl.
SCR 851 = (2006) 1 SCC 141; Nani Gopal Mitra v. State of
Bihar 1969 SCR 411 = AIR 1970 SC 1636; Anant Gopal
G Sheorey v. State of Bombay 1959 SCR 919 = AIR 1958 SC
915 - relied on.
Shiv Bhagwan Moti Ram Saraoji v. Onkarmal lshar Dass
and Ors. (1952) 54 Born LR 330 - stood approved
H
RAMESH KUMAR SONI v. STATE OF MADHYA 1133
PRADESH
Manujendra Dutt. v. Purnedu Prosad Roy Chowdhury & A
Ors. 1967 SCR 475 = AIR 1967 SC 1419, Commissioner of
Income-tax, Bangalore v. Smt. R. Sharadamma 1996 (3)
=
SCR 1200 (1996) 8 SCC 388 and R. Kapilanath(Dead)
=
through L.R. v. Krishna 2002 (5) Suppl, SCR 66 (2003) 1
SCC 444 - referred to. B
V. Dhanapal Chettiar v. Yesodai Ammal 1980 (1)
SCR 334 = (1979) 4 SCC 214 - distinguished.
1.4 The view taken by the Full Bench holding the
amended provision not to be applicable to pending cases C
is not correct on principle. The decision rendered by the
Full Bench would, therefore, stand overruled but only
prospectively. It would be so because the trial of the
cases that were sent back from the Court of Session to
the Court of Magistrate First Class under the orders of the D
Full Bench may also have been concluded or may be at
an advanced stage. Any change of forum at this stage in
such cases would cause unnecessary and avoidable
hardship to the accused in those cases if they were to
be committed to Court of Session for trial in the light of E
the amendment and the view expressed by this Court.·
[para 19) [1148-C-E]
Re: Amendment of First Schedule of Criminal Procedure
Code by Criminal Procedure Code (M.P. Amendment) Act,
F
2007 : 2008 (3) MPLJ 311- overruled.
1.5 The principle of prospective overruling has been
invoked by this Court, no matter sparingly, to avoid
unnecessary hardship and anomalies. The instant case
is one in which this Court need to make it clear that the G
overruling of the Full Bench decision of the Madhya
Pradesh High Court will not affect cases that have
already been tried or are at an advanced stage before the
Magistrates in terms of the said decision. [para 20 and 25]
[1148-F; 1150-G] H
1134 SUPREME COURT REPORTS [2013] 1 S.C.R.
A I. C. Golak Nath and Ors. v. State of Punjab and Ors. 1967
SCR 762 =AIR 1967 SC 1643; Ashok Kumar Gupta and Anr.
v. State of U.P. and Ors. 1997 (3) SCR 269 = (1997) 5 sec
201; Baburam v. C. C. Jacob and Ors. (1999) 3 SCC 362;
Harish Dhingra v. State of Haryana & Ors. 2001 (3) Suppl.
B SCR 446 = (2001) 9 SCC 550; Sarwan Kumar and Anr. v.
Madan Lal Aggarwal 2003 (1) SCR 918 = (2003) 4 SCC
147- relied on.
Rajasthan State Road Transport Corporation and Anr. v.
C Bal Mukund Bairwa 2009 (2) SCR 161 = (2009) 4 SCC 299
- referred to.
Case Law Reference:
1964 SCR 37 referred to para 7
D 1976 (0) Suppl. SCR 524 referred to para 7
1979 (2) SCR 717 referred to para 7
1976 (2) SCR 266 relied on para 9
relied on para 10
E 1994 (1) Suppl. SCR 360
2005 (4) Suppl. SCR 851 relied on para 11
(1952) 54 Born LR 330 stood overruled para 11
1967 SCR 475 distinguished para 14
F
1996 (3) SCR 1200 distinguished para 14
2002 (5) Suppl. SCR 66 distinguished para 14
1980 (1) SCR 334 distinguished para 14
G 1969 SCR 411 relied on para 17
1959 SCR 919 relied on para 18
1967 SCR 762 relied on para 20
H 1997 (3) SCR 269 relied on para 20
RAMESH KUMAR SONI v. STATE OF MADHYA 1135
PRADESH
(1999) 3 sec 362 relied on para 21 A
2001 .(3) Suppl. SCR 446 relied on para 22
2003 (1) SCR 918 relied on para 23
2009 (2) SCR 161 referred to para 24. 8
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 353 of 2013.
From the Judgment & Order dated 02.05.20111 of the
High Court of Madhya Pradesh, Principal Seat at Jabalpur in
Criminal Revision No. 713 of 2011. C
June Chaudhary, Sumeeta Chaudhari, Prabhat Kumar,
Anshuman Ashok, Dr. Kailash Chand for the Appellant.
The Judgment of the Court was delivered by
T.S. THAKUR, J. 1. Leave granted. D
2. The short question that falls for determination in this
appeal is whether the appellant could be tried by the Judicial
Magistrate, First Class, for the offences punishable under ·
Sections 408, 420, 467, 468 and 471 of the IPC notwithstanding E
the fact that the First Schedule of the Code of Criminal
Procedure, 1973 as amended by Code of Criminal Procedure
(Madhya Pradesh Amendment) Act of 2007, made offences
punishable under Sections 467, 468 and 471 of the Penal
Code triable only by the Court of Sessions. The Trial Court of
9th Additional Sessions Judge, Jabalpur has answered that F
question in the negative and held that after the amendment the
appellant could be tried only by the Court of Sessions. That view
has been affirmed by the High Court of Madhya Pradesh at
Jabalpur in a criminal revision petition filed by the appellant
against the order passed by the Trial Court. The factual matrix G
in which the controversy arises may be summarised as under:
3. Crime No.129 of 2007 for commission of offences
punishable under Sections 408, 420, 467, 468 and 471 of the
IPC was registered against the appellant on 18th May, 2007,
H
1136 SUPREME COURT REPORTS [2013) 1 S.C.R.
A at Bheraghat Police Station. On the date of the registration of
the case the offences in question were triable by a.Magistrate
of First Class in terms of the First Schedule of Code of Criminal
Procedure, 1973. That position underwent a change on account
of the Code of Criminal Procedure (Madhya Pradesh
B Amendment) Act of 2007 introduced by Madhya Pradesh Act
2 of 2008 which amended the First Schedule of the 1973 Code
and among others made offences under Sections 467, 468 and
471 of the IPC triable by the Court of Sessions instead of a
Magistrate of First Class. The amendment received the assent
c of the President on 14th February, 2008 and was published in
Madhya Pradesh Gazette (Extraordinary) on 22nd February,
2008. Consequent upon the amendment aforementioned, the
Judicial Magistrate, First Class appears to have committed to
the Sessions Court all cases involving commission of offences
under th~ above provisions. In orie such case the Sessions
0
Judge, Jabalpur, made a reference to the High Court on the
following two distinct questions of law:
1. Whether the recent amendment dated 22nd February,
2008 in the Schedule-I of the Cr.P.C. is to be applied
E retrospectively?
2. Consequently, whether the cases pending before the
Magistrate First Class, in which evidence partly or wholly
has been recorded, and now have been committed to this
Court are to be tried de novo by the Court of Sessions or
F should be remanded back to the Magistrate First Class
for further trial?
4. A Full Bench of the High Court of Madhya Pradesh in
Re: Amendment of First Schedule of Criminal Procedure Code
by Criminal Procedure Code (M. P. Amendment) Act, 2007
G 2008 (3) MPLJ 311, answered the reference and held that all
cases pending before the Court of Judicial Magistrate First
Class as on 22nd February, 2008 remained unaffected by the
amendment and were triable by the Judicial Magistrate First
Class as the Amendment Act did not contain a clear indication
H that such cases also have to be made over to the Court of
RAMESH KUMAR SONI v. STATE OF MADHYA · 1137
PRADESH [T.S. THAKUR, J.]
Sessions. The Court further held that all such cases as were A
pending before the Judicial Magistrate First Class and had
been committed to the Sessions Court shall be sent back to
the Judicial Magistrate First Class in accordance with law. The
reference was answered accordingly.
5. Relying upon the decision of the Full Bench the appellant B
filed an application before the trial Court seeking a similar
direction for remission of the case for trial by a Judicial
Magistrate. The appellant argued on the authority of the above
decision that although the police had not filed a charge-sheet
against the appellant and the investigation in the case was C·
pending as on the date the amendment came into force, the
appellant had acquired the right of trial by a forum specified in
Schedule I of the 1973 Code. Any amendment to the said
· provision shifting the forum of trial to the Court of Sessions was
not attracted to the appellant's case thereby rendering the D
committal of the case to the Sessions Court and the proposed
trial of the appellant before the Sessions Court illegal. The trial
Court, as mentioned earlier, repelled that contention and held
that since no charge-sheet had been filed before the Magistrate
as on the date the amendment came into force, the case was E
exclusively triable by the Sessions Court. The High Court has
affirmed that view and dismissed the revision petition filed by
the appellant, hence the present appeal.
6. The Code of Criminal Procedure (Madhya Pradesh
Amendment) Act, 2007 is in the following words: F
"An Act further to amend the Code of Criminal Procedure,
1973 in its application to the State of Madhya Pradesh.
Be it enacted by the Madhya Pradesh Legislature in
the Fifty-eighth Year of the Republic of India as follows:
G
1. Short title. - (1) This Act may be called the Code
of Criminal Procedure (Madhya -Pradesh
Amendment) Act, 2007.
2. Amendment of Central Act No.2 of 1974 in its
H
1138 SUPREME COURT REPORTS [2013] 1 S.C.R.
A application to the State of Madhya Pradesh - The
Code of Criminal Procedure, 1973 (No. 2 of 1974)
(hereinafter referred to as the Principal Act), shall
in its application to the State of Madhya Pradesh,
be amended in the manner hereinafter provided.
B 3. Amendment of Section 167 - ......
xxxx xxx xxx
4. Amendment of the First Schedule - In the First
Schedule to the Principal Act, under the heading "!-
c Offences under the Indian Penal Code" in column
6 against section 317, 318, 326, 363, 363A, 365,
377, 392, 393, 394, 409,435,466,467,468,471,
472, 473, 475, 476, 477 and 477A, for the words
"Magistrate of First Class" wherever they occur, the
D words "Court of Sessions" shall be substituted.•
7. The First Schedule to the Criminal Procedure Code
1973 classifies offences under the IPC for purposes of
determining whether or not a particular offence is cognizable
or non-cognizable and bailable or non-bailable. Column 6 of the
E First Schedule indicates the Court by which the offence in
question is triable. The Madhya Pradesh Amendment extracted
above has shifted the forum of trial from the Court of a
Magistrate of First Class to the Court of Sessions. The question
is whether the said amendment is prospective and will be
F applicable only to offences committed after the date the
amendment was notified or would govern cases that were
pending on the date of the amendment or may have been filed
after the same had become operative. The Full Bench has
taken the view that since there is no specific provision
G contained in the Amendment Act making the amendment
applicable to pending cases, the same would not apply to
cases that were already filed before the Magistrate. This
implies that if a case had not been filed upto the date the
Amendment Act came into force, it would be governed by the
H Amended Code and hence be triable only by the Sessions
RAMESH KUMAR SONI v. STATE OF MADHYA 1139
PRADESH [T.S. THAKUR, J.]
Court. The Code of Criminal Procedure does not, however, A.
provide any definition of institution of a case. It is, however, trite
that a case must be deemed to be instituted only when the Court
competent to take cognizance of the offence alleged therein
does so. The cognizance can, in turn, be taken by a Magistrate
on a complaint of facts filed before him which constitutes such B
an offence. It may also be taken if a police report is filed before
the Magistrate in writing of such facts as would constitute an
offence. The Magistrate may also take cognizance of an
offence on the basis of his knowledge or suspicion upon
receipt of the information from any person other than a police C
officer. In the case of the Sessions Court, such cognizance is
taken on commitment to it by a Magistrate duly empowered in
that behalf. All this implies that the case is instituted in the
Magistrate's Court when the Magistrate takes cognizance of
an offence, in which event the case is one instituted on a
complaint or a police report. The decision of this Court in D
Jamuna Singh and Ors. v. Bahdai Shah AIR 1964 SC 1541,
clearly explains the legal position in this regard. To the same
effect is the decision of this Court in Devrapal/y
Lakshminarayana Reddy and Ors. v. Narayana Reddy and
Ors. (1976) 3 sec 252 where this Court held that a case can E
be said to be instituted in a Court only when the Court takes
cognizance of the offence alleged therein and that cognizance
can be taken in the manner set out in clauses (a) to (c) of
Section 190(1) of the Cr.P.C. We may also refer to the
decision of this Court in Kam/apati Trivedi v. State of West F
Bengal (1980) 2 SCC 91 where this Court interpreted the
provisions of Section 190 Cr.P.C. and reiterated the legal
position set out in the earlier decisions.
8. Applying the test judicially recognized in the above
pronouncements to the case at hand, we have no hesitation in G
holding that no case was pending before the Magistrate
against the appellant as on the date the Amendment Act came
into force. That being so, the Magistrate on receipt of a charge-
sheet which was tantamount to institution of a case against the
appellant was duty bound to commit the case to the Sessions H
1140 SUPREME COURT REPORTS [2013] 1 S.C.R.
A as three of the offences with which he was charged were triable
only by the Court of Sessions. The case having been instituted
after the Amendment Act had taken effect, there was no need
to look for any provision in the Amendment Act for determining
whether the amendment was applicable even to pending
8 matters as on the date of the amendment no case had been
instituted against the appellant nor was it pending before any
Court to necessitate a search for any such provision in the
Amendment Act. The Sessions Judge as also the High Court
were, in that view, perfectly justified in holding that the order of
C committal passed by the Magistrate was a legally valid order
and the appellant could be tried only by the Court of Sessions
to which the case stood committed.
9. Having said so, we may now examine the issue from a
slightly different angle. The question whether any law relating
0 to forum of trial is procedural or substantive in nature has been
the subject matter of several pronouncements of this Court in
the past. We may refer to some of these decisions, no matter
briefly. In New India Insurance Company Ltd. v. Smt. Shanti
Misra, Adult (1975) 2 SCC 840, this Court was dealing with
E the claim of payment of compensation under the Motor Vehicles
Act. The victim of the accident had passed away because of
the vehicular accident before the constitution of the Claims
Tribunal under the Motor Vehicles Act, 1939, as amended. The
legal heirs of the deceased filed a claim petition for payment
of compensation before the Tribunal after the Tribunal was
F established. The question that arose was whether the claim
petition was maintainable having regard to the fact that the
cause of action had arisen prior to the change of the forum for
trial of a claim for payment of compensation. This Court held
that the change of law operates retrospectively even if the
G cause of action or right of action had accrued prior to the
change of forum. The claimant shall, therefore, have to
approach the forum as per the amended law. The claimant,
observed this Court, had a "vested right of action" but not a
"vested right of forum". It also held that unless by express words
H the new forum is available only to causes of action arising after
RAMESH KUMAR SONI v. STATE OF MADHYA 1141
PRADESH [T.S. THAKUR, J.]
the creation of the forum, the general rule is to make it A
retrospective. The following passages are in this regard
apposite:
"5. On the plain language of Sections 110-A and 110-F
there should be no difficulty in taking the view that the
change in law was merely a change of forum i.e. a change B
of adjectival or procedural law and not of substantive law.
It is a well-established proposition that such a change of
law operatesretrospectively and the person has to go to
the new forum even if his cause of action or right of action
accrued prior to the change of forum. He will have a vested C
right of action but not a vested right of forum. If by express
words the new forum is made available only to causes of
action arising after the creation of the forum, then the
retrospective operation of the law is taken away. Otherwi~e
the general rule is to make it retrospective. The D
expressions "arising out of an aycident" occurring in sub-
section (1) and "over the area in which the accident
occurred'', mentioned in sub-section (2) clearly show that
the change of forum was meant to be operative
retrospectively irrespective of the fact as to when the E
accident occurred. To that extent there was no difficulty in
giving the answer in a simple way. But the provision of
limitation of 60 days contained in sub-section (3) created
an obstacle in the,,straight application of the well-
established principle ofraw. If the accident had occurred F
within 60 days prior to the constitution of the tribunal then
the bar of limitation provided in sub-section (3) was not an
impediment. An application to the tribunal could be said
to be the only remedy. If such an application, due to one
reason or the other, could not be made within 60 days then G
the tribunal had the power to condone the delay under the
proviso. But if the accident occurred more than 60 days
before the constitution of the tribunal then the bar of
limitation provided in sub-section (3) of Section 110-A on
its face was attracted. This difficulty of limitation led most H
of the High Courts to fall back upon the proviso and say
1142 SUPREME COURT REPORTS [2013] 1 S.C.R
A that such a case will be a fit one where the tribunal would
be able to condone the delay under the proviso to sub-
section (3), and led others to say that the tribunal will have
no jurisdiction to entertain such an application and the
remedy of going to the civil court in such a situation was
B not barred under Section 110-F of the Act. While taking
the latter view the High Court failed to notice that primarily
the law engrafted in Sections 110-A and 110-F was a law
relating to the change of forum.
6. In our opinion in view of the clear and
C unambiguous language of Sections 110-A and 110-F it is
not reasonable and proper to allow the law of change of
forum give way to the bar of limitation provided in sub-
section (3) of Section 110-A. It must be vice versa. The
change of the procedural law of forum must be given effect
.-0 to. The underlying principle of the change of law brought
about by the amendment in the year 1956 was to enable
the claimants to have a cheap remedy of approaching the
claims tribunal on payment of a nominal court fee whereas
a large amount of ad valorem court fee was required to
E be paid in civil court."
10. In Hitendra Vishnu Thakur and Ors. etc. etc. v. State
of Maharashtra and Ors. (1994) 4 SCC 602, one of the
questions which this Court was examining was whether clause
(bb) of Section 20(4) of Terrorist and Disruptive Activities
F (Prevention) Act, 1987 introduced by an Amendment Act
governing Section 167(2) of the Cr.P.C. in relation to TADA
matters was in the realm of procedural law and if so, whether
the same would be applicable to pending cases. Answering the
question in the affirmative this Court speaking through A.S.
G Anand, J. (as His Lordship then was), held that Amendment Act
43of1993 was retrospective in operation and that clauses (b)
and (bb) of sub-section (4) of Section 20 of TADA apply to the
cases which were pending investigation on the date when the
amendment came into force. The Court summed up the legal
H position with regard to the procedural law being retrospective
RAMESH KUMAR SONI v. STATE OF MADHYA 1143
PRADESH [T.S. THAKUR, J.]
in its operation and the right of a litigant to claim that he be tried A
by a particular Court, in the following words:
"26. xxx xxx
(i) A statute which affects substantive rights is
presumed to be prospective in operation unless made B
retrospective, either expressly or by necessary intendment,
whereas a statute which merely affects procedure, unless
such a construction is textually impossible, is presumed to
be retrospective in its application, should not be given an
extended meaning and should be strictly confined to its C
clearly defined limits.
(ii) Law relating to forum and limitation is procedural
in nature, whereas law relating to right of action and right
of appeal even though remedial is substantive in nature.
(iii) Every litigant has a vested right in substantive law D
but no such right exists in procedural law.
(iv) A procedural statute should not generally
speaking be applied retrospectively where the result would
be to create new disabilities or obligations or to impose
new duties in respect of transactions already E
accomplished.
(v) A statute which not only changes the procedure
but also creates new rights and liabilities shall be construed
to be prospective in operation, unless otherwise provided,
either expressly or by necessary implication." F
11. We may also refer to the decision of this Court in
Sudhir G. Angur and Ors. v. M. Sanjeev and Ors. (2006) 1
SCC 141 where a three-Judge Bench of this Court approved
the decision of the Bombay High Court in Shiv Bhagwan Moti G
Ram Saraoji v. Onkarmal /shar Dass and Ors. (1952) 54 Born
LR 330 and observed:
"12 .... lt has been held that a Court is bound to take notice
of the change in the law and is bound to administer the
law as it was when the suit came up for hearing. It has been H
1144 SUPREME COURT REPORTS [2013] 1 S.C.R.
A held that if a Court has jurisdiction to trv the suit. when it
comes on for disposal. it then cannot refuse to assume
jurisdiction by reason of the fact that it had no jurisdiction
!o entertain it at the date when it was instituted. We are in
complete agreement with these observations ... "
B ~mph~~suppl~)
12. In Shiv Bhagwan Moti Ram Saraoji's case (supra) the
Bombay High Court has held procedural laws to be in force
unless the legislatures expressly provide to the contrary. The
Court observed:
c
"... Now, I think it may be stated as a general principle
that no party has a vested right to a particular proceeding
or to a particular forum, and it is also well settled that all
procedural laws are retrospective unless the Legislature
expressly states to the contrary. Therefore. procedural laws
D
jn force must be applied at the date when a suit or
12roceeding comes on for trial or disposal ... "
(empha_sis supplied)
13. The amendment to the Criminal Procedure Code in the
E instant case has the effect of shifting the forum of trial of the
accused from the Court of Magistrate First Class to the Court
of Sessions. Apart from the fact that as on the date the
amendment came into force no case had been instituted
against the appellant nor the Magistrate had taken cognizance
F against the appellant, any amendment shifting the forum of the
trial had to be on principle retrospective in nature in the
absence of any indication in the Amendment Act to the contrary.
The appellant could not claim a vested right of forum for his trial
for no such right is recognised. The High Court was, in that view
G of the matter, justified in interfering with the order passed by
the Trial Court.
14. The questions formulated by the Full Bench of the High
Court were answered in the negative holding that all cases
pending in the Court of Judicial Magistrate First Class as on
H 22nd February, 2008 when the amendment to the First
RAMESH KUMAR SONI v. STATE OF MADHYA 1145
PRADESH [T.S. THAKUR, J.]
Schedule to the Cr.P.C. became operative, will remain A
unaffected by the said amendment and such matters as were,
in the meanwhile committed to the Court of Sessions, will be
sent back to the Judicial Magistrate First Class for trial in
accordance with law. In coming to that conclusion the Full Bench
placed reliance upon three decisions of this Court in B
Manujendra Dutt. v. Purnedu Prosad Roy Chowdhury & Ors.
AIR 1967 SC 1419, Commissioner of Income-tax, Bangalore
v. Smt. R. Sharadamma (1996) 8 SCC 388 and R.
Kapilanath(Dead) through L.R. v. Krishna (2003) 1 SCC 444.
The ratio of the above decisions, in our opinion, was not directly c
applicable to the fact situation before the Full Bench. The Full
Bench of the High Court was concerned with cases where
evidence had been wholly or partly recorded before the Judicial
Magistrate First Class when the same were committed to the.
Court of Sessions pursuant to the amendment to the Code of D
Criminal Procedure. The decisions upon which the High Court
placed reliance did not, however, deal with those kind of fact
situations. In Manujendra Dutt's case (supra) the proceedings
in the Court in which the suit was instituted had concluded. At
any rate, no vested right could be claimed for a particular forum
for litigation. The decisions of this Court referred to by us earlier E
settle the legal position which bears no repetition. It is also
noteworthy that the decision in Manujendra Dutt's case (supra)
was subsequently overruled by a seven-Judge Bench of this
Court in V. Dhanapal Chettiar v. Yesodai Ammal (1979) 4
sec 214 though on a different legal point. F
15. So also the decision of this Court in Smt. R.
Sharadamma's case (supra) relied upon by the Full Bench was
distinguishable on facts. The question there related to a liability
incurred under a repealed enactment. Proceedings in the forum G
in which the case was instituted had concluded and the matter
had been referred to Inspecting Assistant Commissioner before
the dispute regarding jurisdiction arose.
16. The decision of this Court in R. Kapilanath's case
(supra), relied upon by the Full Bench was also distinguishable H
1146 SUPREME COURT REPORTS (2013] 1 S.C.R.
A since that was a case where the eviction proceedings before
the Court of Munsif under the Karnataka Rent Control Act, 1961
had concluded when the Karnataka Rent Control (Amendment)
Act, 1994 came into force. By that amendment, the Court of
Munsif was deprived of jurisdiction in such cases. This Court
B held that the change of forum did not affect pending
proceedings. This Court further held that the challenge to the
competence of the forum was raised for the first time, that too
as an additional ground before this Court and that, for other
factors, the Court was inclined to uphold the jurisdiction of the
c Court of Munsif to entertain and adjudicate upon the eviction
matter. The fact situation was thus different in this case.
17. Even otherwise the Full Bench failed to notice the law
declared by this Court in a series of pronouncements on the
subject to which we may briefly refer at this stage. In Nani Gopal
D Mitra v. State of Bihar AIR 1970 SC 1636, this Court declared
that amendments relating to procedure operated
retrospectively subject to the exception that whatever be the
procedure which was correctly adopted and proceedings
concluded under the old law the same cannot be reopened for
E the purpose of applying the new procedure. In that case the trial
of the appellant had been taken up by Special Judge, Santhal
Paraganas when Section 5(3) of the Prevention of Corruption
Act, 1947 was still operative. The appellant was convicted by
the Special Judge before the Amendment Act repealing
F Section 5(3) was promulgated. This Court held that the
conviction pronounced by the Special Judge could not be
termed illegal just because there was an amendment to the
procedural law on 18th December 1964. The following
passage is, in this regard, apposite:
G ".... It is therefore clear that as a general rule the amended
law relating to procedure operates retrospectively. But
there is another equally important principle, viz. that a
statute should not be so construed as to create new
disabilities or obligations or impose new duties in respect
H of transactions which were complete at the time the
RAMESH KUMAR SONI v. STATE OF MADHYA 1147
PRADESH [T.S. THAKUR, J.]
amending Act came into force--(See In re a Debtor, and A
In re Vernazza. The same principle is embodied in
Section 6 of the General Clauses Act which is to the
following effect:
xx xx xx (Section 6 is quoted) xx xx xx
B
.... The effect of the application of this principle is that
pending cases although instituted under the old Act but still
pending are governed by the new procedure under the
amended law, but whatever procedure was correctly
adopted and concluded under the old law cannot be
opened again for the purpose of applying the new C
procedure. In the present case, the trial of the appellant was
taken up by the Special Judge, Santhal Parganas when
Section 5(3) of the Act was still operative. The conviction
of the appellant was pronounced on March 31, 1962 by
the Special Judge, Santhal Parganus long before the D
amending Act was promulgated. It is not hence possible
to accept the argument of the appellant that the conviction
pronounced by the Special Judge, Santhal Parganas has
become illegal or in any way defective in law because of
the amendment to procedural law made on December 18, E
1964. In our opinion, the High Court was right in invoking
the presumption under Section 5(3) of the Act even though
it was repealed on December 18, 1964 by the amending
Act. We accordingly reject the argument of the appellant
on this aspect of the case." F
(emphasis supplied)
18. Reference may also be made upon the decision of this
Court in Anant Gopal Sheorey v. State of Bombay AIR 1958
SC 915 where the legal position was stated in the following G
words:
"4. The question that arises for decision is whether to a
pending prosecution the provisions of the amended Code
have become applicable. There is no controversy on the
general principles applicable to the case. No person has H
1148 SUPREME COURT REPORTS [2013] 1 S.C.R.
A a vested right in any course of procedure. He has only the
right of prosecution or defence in the manner prescribed
for the time being by or for the Court in which the case is
pending and if by an Act of Parliament the mode of
procedure is altered he has no other right than to proceed
B according to the altered mode. See Maxwell on
Interpretation of Statutes on p. 225; The Colonial Sugar
Refining Co. Ltd. v. Irving (1905) A.C. 369, 372). In other
words a change in the law of procedure operates
retrospectively and unlike the law relating to vested right
c is not only prospective."
19. The upshot of the above discussion is that the view
taken by the Full Bench holding the amended provision to be
applicable to pending cases is not correct on principle. The
decision rendered by the Full Bench would, therefore, stand
o overruled but only prospectively. We ·say so because the trial
of the cases that were sent back from Sessions Court to the
Court of Magistrate First Class u11der the orders of the Full
Bench may also have been concluded or may be at an
advanced stage. Any change of forum at this stage in such
E cases would cause unnecessary and avoidable hardship to the
accused in those cases if they were to be committed to the
Sessions for trial in the light of the amendment and the view
expressed by us.
20. The principle of prospective overruling has been
F invoked by this Court, no matter sparingly, to avoid
unnecessary hardship and anomalies. That doctrine was first
invoked by this Court in l.C. Go/ak Nath and Ors. v. State of
Punjab and Ors. AIR 1967 SC 1643 followed by the decision
of this Court in Ashok Kumar Gupta and Anr. v. State of U.P.
G and Ors. (1997) 5 sec 201.
21. In Baburam v. C.C. Jacob and Ors. (1999) 3 SCC
362, this Court invoked and adopted a device for avoiding
reopening of settled issues, multiplicity of proceedings and
avoidable litigation. The Court said:
H
RAMESH KUMAR SONI v. STATE OF MADHYA 1149
PRADESH [T.S. THAKUR, J.]
"5. The prospective declaration of law is a devise innovated A
by the apex court to avoid reopening of settled issues and
to prevent multiplicity of proceedings. It is also a
devise adopted to avoid uncertainty and avoidable
litigation. By the very object of prospective declaration of
law, it is deemed that all actions taken contrary to the B
declaration of law prior to its date of declaration are
validated. This is done in the larger public interest.
Therefore, the subordinate forums which are legally bound
to apply the declaration of law made by this Court are also
duty-bound to apply such dictum to cases which "would c
arise in future only. In matters where decisions opposed
to the said principle have been taken prior to such
declaration of law cannot be interfered with on the basis
of such declaration of law ... "
(emphasis supplied) D
22. To the same effect is the decision of this Court in
Harish Dhingra v. State of Haryana & Ors. (2001) 9 SCC 550
where this Court observed:
"7. Prospective declaration of law is a device innovated E
by this Court to avoid reopening of settled issues and to
prevent multiplicity of proceedings. It is also a device
adopted to avoid uncertainty and avoidable litigation.
By the very object of prospective declaration of law it is
deemed that all actions taken contrary to the declaration
of law, prior to the date of the declaration are validated. F
This is done in larger public interest. Therefore, the
subordinate forums which are bound to apply law declared
by this Court are also duty bound to apply such dictum to
cases which would arise in future. Since it is indisputable
that a court can overrule a decision there is no valid reason G
why it should not be restricted to the future and not to the
past. Prospective overruling is not only a part of
constitutional policy but also an extended facet of stare
decisis and not judicial legislation."
(emphasis supplied) H
1150 SUPREME COURT REPORTS (2013] 1 S.C.R.
A 23. In Sarwan Kumar and Anr. v. Madan Lal Aggarwal
(2003) 4 SCC 147, this Court held that though the doctrine of
prospective overruling was initially made applicable to the
matters arising under the Constitution but subsequent decisions
· have made the same applicable even to cases under different
s statutes. The Court observed:
"15. The doctrine of "prospective overruling" was initially
made applicable to the matters arising under the
Constitution but we understand the same has since been
made applicable to the matters arising under the statutes
C as well. Under the doctrine of "prospective overruling" the
law declared by the Court applies to the cases arising in
future only and its applicability to the cases which have
attained finality is saved because the repeal would
otherwise work hardship to those who had trusted
D to its existence. Invocation of doctrine of "prospective
overruling" is left to the discretion of the court to mould with
the justice of the cause or the matter before the court."
(emphasis supplied)
24. In Rajasthan State Road Transport Corporation and
E Anr. v. Bal Mukund Bairwa (2009) 4 SCC 299, this Court relied
upon the observations made by Justice Benjamin N. Cardozo
in his famous compilation of lectures The Nature of Judicial
Process - that" in the vast majority of cases, a judgment would
be retrospective. It is only where the hardships are too great
F that retrospective operation is withheld."
25. The present case, in our opinion, is one in which we
need to make it clear that the overruling of the Full Bench
decision of the Madhya Pradesh High Court will not affect
G cases that have already been tried or are at an advanced stage
before the Magistrates in terms of the said decision.
26. With the above observations, this appeal fails and is
hereby dismissed.
R.P. Appeal dismissed.
H
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